Today in History (1787): Representatives of 12 colonies (Rhode Island refused to send any)
gathered at Pennsylvania State House to begin drafting the U.S. Constitution.
It was submitted for signing on September 17.

May 31, 2007

Dear Sen. Brownback: You're Better Served by Sound Bites

In our sound-bite political culture, it is unrealistic to expect that every complicated issue will be addressed with the nuance or subtlety it deserves. So I suppose I should not have been surprised earlier this month when, during the first Republican presidential debate, the candidates on stage were asked to raise their hands if they did not “believe” in evolution. As one of those who raised his hand, I think it would be helpful to discuss the issue in a bit more detail and with the seriousness it demands.

Despite a general lack of commonality with Brownback's positions, I thought this was a great opening paragraph. I too dislike the tendency of these cattle-call, televised debates to wipe out the nuance and subtlety necessary to sound policymaking. I looked forward to Brownback's staking out a sophisticated position combining faith and reason, a la Francis Collins of the Human Genome Project. Unfortunately, that's not exactly where Brownback stands, and his concluding paragraphs just plain freaked me out as a warning sign that a Brownback administration would put a religious litmus test on scientific funding:

The unique and special place of each and every person in creation is a fundamental truth that must be safeguarded. I am wary of any theory that seeks to undermine man’s essential dignity and unique and intended place in the cosmos. I firmly believe that each human person, regardless of circumstance, was willed into being and made for a purpose.
While no stone should be left unturned in seeking to discover the nature of man’s origins, we can say with conviction that we know with certainty at least part of the outcome. Man was not an accident and reflects an image and likeness unique in the created order. Those aspects of evolutionary theory compatible with this truth are a welcome addition to human knowledge. Aspects of these theories that undermine this truth, however, should be firmly rejected as an atheistic theology posing as science.

First, I haven't heard the word "unique" used so many times in so few sentences since a smalltown shopkeeper tried to sell me a handpainted doll (I assume that I shouldn't substitute "ugly" for "unique" in Brownback's statement, however). Second, the idea that "[m]an ... reflects an image and likeness" isn't even held by all people of faith. Just because Judaism and Christianity hew to the belief that we are physical mirrors of God ("And God said, Let us make man in our image, after our likeness: ... So God created man in his own image, in the image of God created he him; male and female created he them." Genesis 1:26-27*) does not make this true for all religious traditions -- just the one to which Brownback belongs. For a Hindu, this could seem like an arrogant idea; how can a human on earth be in the image of the gods, particularly when -- unlike the Christian God, who has manifested on earth only in the form of Jesus -- the gods have such a multitude of forms?

Still, if Brownback just wanted to say what his personal preferences are, that's all fine. I might wince at his repetitive style and self-centered assertions, but they're probably the fault of a conservative staffer who thought this was what a Times op-ed should sound like. It's the point at which Brownback stops speaking about personal beliefs and starts talking in normative generalities that I get worried: "Those aspects of evolutionary theory compatible with this truth are a welcome addition to human knowledge. Aspects of these theories that undermine this truth, however, should be firmly rejected as an atheistic theology posing as science."

So now whether a particular part of a scientific theory is fit to be part of "human knowledge," the pursuit of which is funded by the U.S. government in a multitude of ways, will depend on whether it fits with Brownback's idea of what is true, i.e. humans that were created in God's image. Anything that doesn't fit with Brownback's idea of what is true will be rejected, no matter how good the research or logical the analysis, because it automatically must be "an atheistic theology posing as science."

I hope that Dr. Collins and other religious scientists who have benefited from government funding will speak up to protest any attempt to put a theological litmus test on what constitutes "a welcome addition to human knowledge." This seems to me not only unwise as a policy matter, but also potentially unconstitutional. The political appointees in a Brownback administration may perceive a non-Christian scientist as likely to spend any grants she receives on the pursuit of ideas that are incompatible with Brownback's truths.

Brownback munificently grants that micro-evolution within a species occurs, but his In-God's-Image stance would render impossible common ancestry for humans and other primates, unless he's saying that it wasn't until homo sapiens sapiens that the genus homo "reflect[ed] an image and likeness." Yet such basic acknowledgment of the fossil record doesn't require a belief in utterly random mutations that survived through natural selection, which is the aspect of modern evolutionary theory that honestly can be seen as a threat to belief in a conscious creation. One could think -- as some people do -- that God guided humans' and chimps' separate evolution from a Hominini ancestor, and that the traits of altruism, abstract thinking, etc. that interplay with sophisticated language and other capacities peculiar to humans were God-granted. I don't know much about paleoanthropology, but my understanding is that we still don't know much about how we came to have the common notion that a human who kills another human in order to possess the deceased's property should be punished by the remaining humans.

So, yes, Brownback is right that this is all complicated and doesn't fit well into a simple "raise your hand if you don't believe in evolution." He is wrong, however, to think that expanding on his views would reassure those of us who might have been worried by an anti-evolution president.

* I know the Roman Catholic Brownback is unlikely to be reading the KJV, but this is a post written by an English major, dammit.

May 30, 2007

If a Justice Reads from the Bench... Has She Given an Oral Dissent?

The notion that Ginsburg's reading her dissents in the abortion and employment discrimination cases was an attempt to alert the public to what is happening in the cases strikes me as an utterly crack-brained, if not actually crack-headed, idea. I had no idea that Ginsburg had read these dissents from the bench, and I'm in the small minority (maybe 0.001%) of Americans who read the dissents myself. If Ginsburg's own admirers and sympathizers have to be alerted by Linda Greenhouse that Ginsburg is doing something, how effective a tool on public opinion can that something be?

When I go to read the latest decisions from the Supreme Court website, there is no audio link to the justices' reading their opinions. I only know if one has been read when the media chooses to report it. I cannot believe that Ginsburg -- who has a law professor daughter and a husband who is both a professor and of counsel -- is so unaware of her audience that she thinks people with a general interest in the law but no daily access to the Court are aware of whether opinions are being read aloud or not.

In my opinion, justices read their opinions primarily for two reasons: 1) self expression; 2) effect on their brethren. Surely Scalia derives some satisfaction not only from seeing his insults to his colleagues on paper, but also from reading them aloud and savoring their acerbic flavor. He also can make those in the majority differing from him understand just how angry Nino really is. Ginsburg is likely to be similarly motivated, though due to her more amicable personality, I agree with the article's analysis that her reading two dissents in a single term -- both on what are identified as women's issues, i.e. abortion and sex discrimination in the workplace -- indicates some loss of faith in her colleagues, albeit an analysis more true with Ledbetter than Carhart. (Alito probably never will be an ally, but Ginsburg sounds like she's expressing disappointment in Kennedy; if she's tossed him aside as an ally, that is very stupid.)

May 29, 2007

Ledbetter Will Lead to Worse

I can see a good conservative reason to be unhappy with this decision -- it creates a motive for women to file suit as soon as they suspect even the tiniest bit of discrimination, because they're afraid to miss the 180-day window. This rush to litigation will increase the burden on the EEOC and the courts tremendously. Many people have had moments in the workplace where they wonder if they're being discriminated against, and later are reassured that a non-malicious error occurred, or find out the non-invidious reason they were treated differently. With Ledbetter, the employee who casually mentions to a lawyerly acquaintance, "Hey, you know anything about employment law? I started working five months ago, and today I found out that my paycheck's less than the guy I started with -- do you think maybe they're paying me less because I'm a woman?" will be told that while the attorney cannot evaluate the claim, he can say that the window for filing it is nearly closed.

Ginsburg doesn't make that specific point in her dissent. However, she does note, "Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves. ... Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex." On the other hand, I suppose reducing the readiness to give the employer the benefit of the doubt will provide those displeased by the existence of remedies against discrimination with useful statistics on the number of complaints that come to naught. A short period in which to complain, that pressures employees to cry before they are themselves certain as to whether it's a wolf, may have some long-run usefulness in allowing a conservative politician to call for raising the barriers to filing with the EEOC.

I need to re-read the facts alleged by the plaintiff to be sure, but the majority's dismissal of Bazemore as precedent to validate Ledbetter's claims seems ludicrous. From the synopsis:

Bazemore v. Friday, 478 U. S. 385 (per curiam), which concerned a disparate-treatment pay claim, is entirely consistent with Evans, Ricks, Lorance, and Morgan. Bazemore’s rule is that an employer violates Title VII and triggers a new EEOC charging period whenever the employer issues paychecks using a discriminatory pay structure. It is not, as Ledbetter contends, a “paycheck accrual rule” under which each paycheck, even if not accompanied by discriminatory intent, triggers a new EEOC charging period during which the complainant may properly challenge any prior discriminatory conduct that impacted that paycheck’s amount, no matter how long ago the discrimination occurred. Because Ledbetter has not adduced evidence that Goodyear initially adopted its performance-based pay system in order to discriminate based on sex or that it later applied this system to her within the charging period with discriminatory animus, Bazemore is of no help to her.

If the folks at Goodyear knew that Ledbetter was getting paid less than her male peers -- indeed, sometimes below the minimum required for a person in her position -- and never bothered to review her compensation, this seems to be part of the pay structure itself. The problem is that as mental state goes, the failure to review despite knowledge of dispairty is more like discriminatory negligence or recklessness than intent. However, Ledbetter does seem to have some evidence that the system was applied, neglecting to correct her salary, with discriminatory animus, inasmuch as many of her supervisors expressed sex discriminatory thoughts and quite likely were motivated by such animus in their disregard for whether she was being paid fairly under this pay system or not. Surely if a system, itself unbiased, is administered by people with discriminatory animus who are happy to keep a prior instance of discrimination rolling until it snowballs into a massive pay disparity, the system and its administration have had a discriminatory effect on the employee. Look at Bazemore:

The Court of Appeals' conclusion that pre-Act salary discrimination did not have to be eliminated undermines the rest of its analysis of the District Court opinion. Having rejected the effect of pre-Act discrimination, the court considered solely whether the Extension Service discriminated with respect to the application of quartile rankings which, according to the Court of Appeals, were "the only aspect of salary computation in which the Extension Service exercised any discretion." 751 F.2d, at 674.[Footnote 7] Because, as we have explained, the Extension Service was under an obligation to eradicate salary disparities based on race that began prior to the effective date of Title VII,[Footnote 8] the Court of Appeals erred in concentrating its analysis solely on the issue whether there was racial discrimination in the ranking system.

Footnote 7. Quartile ranking refers to the practice of the Extension Service of placing each agent in the first, second, third, or fourth quartile, according to his or her performance for the previous period. These rankings influence salary decisions.

Footnote 8. This lawsuit involves two distinct types of salary claims: those of employees subject to the premerger discriminatory pay structure and those hired after the merger of the black and white branches. If the acknowledged pre-1965 disparities continued for employees employed prior to 1965, then respondents violated the law. But for employees covered by this suit who were never employed under the dual system, it is meaningless to say that the pre-1965 disparity "continued" past 1972, absent (1) evidence that new disparities were created or begun after the merger that continued past 1972, or (2) evidence that new disparities were created after 1972. See Brief for Plaintiffs-Appellants Bazemore et al. in Nos. 82-1873(L), 82-1881, 82-1927, 82-2065 (CA4), pp. 24-41.

I don't know the facts of Bazemore beyond what's in the Supreme Court decision, but my understanding is that the plaintiffs failed to prove discrimination in the application of the quartile ranking system itself, whereas the discrimination originating in the separate white and black branches of the agency was pretty much indisputable. Therefore the disparity that the Court said required correction was due to past active discrimination, and the failure to correct it was passive acquiesence to that discrimination. This seems to me basically what's happening with Ledbetter.

If the problem in Bazemore, as the majority opinion notes, was “[t]he continued use of a racially explicit base wage,” aside from being based on race instead of sex, and being explicit instead of unnamed, how is this different from Ledbetter? For a lengthy period of time, her wages were kept lower than her male peers', and a jury found that this was due to sex discrimination. The resulting lower wage was her "base wage" at the time her supervisors stopped giving her lower performance evaluations -- resulting in lower raises -- because of her sex. That a subsequent supervisor evaluated her fairly and gave her a percentage increase in her base wage, which percentage increase was not biased by discriminatory animus, does not change the fact that her base wage was the result of discrimination, just as the Bazemore plaintiffs' wages were.

I just cannot figure out why, if the Extension Service was under an affirmative obligation to erase wage differences created by prior bad acts, Goodyear was not under a similar obligation to do the same.

PG Gets Recruited by Whiteness

Pulled over for a speeding violation today, I discovered that the grouping of Asians with whites that David Schraub predicts already has occurred -- on my speeding ticket. Under "Race," I was noted as W, and according to the key at the bottom of the page, W = White. But I think this may have been an incomplete recruitment, inasmuch as there is still an A = Asian of Pacific Islander in the key as well. I have been mistaken for Latina once or twice before, yet this error was not made by the traffic cop; under "Ethnic Orig," I got the NH that = Non-Hispanic.

I find the ticket weirdly fascinating, as I try to work out what was going through the police officer's mind when he filled out the description of me. Name, age, eye color and height could be found on my driver's license; hair color through a moment's observation. But what about weight (which he flatteringly underestimated*)? How does he know I'm non-Hispanic? Why did he categorize as White a person who is clearly not of European origin and, if given such a form, would self-identify among the various options as being Asian? Perhaps U.S. v. Bhagat Singh Thind has been reversed de facto.

A factor that Schraub did not consider in theorizing about other groups' ascending to the privileges of Whiteness is whether those groups want to be White. I think this is due to his purely hierarchical consideration of race; if whites are at the top, wouldn't everyone want to be at the top too? But inasmuch as whites historically will expand to include groups that earlier were not given those privileges (e.g. Irish and Catholics generally, Eastern and Southern Europeans, Jews), this tends to require some submersion of the qualities, whether real or perceived, that distinguished those groups. For the most part, this probably needs only a little willful blindness on the part of WASPs, such that being Catholic instead of Protestant doesn't really matter anymore, as long as you're still a white Christian. But it also may demand some covering by the recruited group itself.

This raises the question of whether Asians want to cover and be assimilated into "might as well be White, they're so similar." For many whites, being colorless -- i.e., the de-racialized norm -- has been pushed by the forces of secularism and ethnic intermarriage into being somewhat tradition-less as well. References to Christianity are modified to "Judeo-Christian." Phenomena like the Apache prayer described by Rebecca Mead, which one officiant charges $1000+ to say though it actually was made up for a 1950 Western, indicate that many people whose ancestors deracialized them are now searching for some kind of tradition to grab onto, even one made up by Hollywood and purveyed at ridiculous prices.**

WASPs are also dropping some of the old signifiers. Consider President Bush, who is about as WASPy as they come: the third generation of wealthy New England-born politicians, the product of expensive boarding schools and Ivy League colleges. Though raised Episcopalian -- the post-Revolutionary American version of the Church of England's Anglicanism -- G.W. Bush is now a United Methodist, a denomination less identified with power and privilege. His brother Jeb, after marrying a Mexican Roman Catholic, converted to her faith.

I think what America actually is moving toward is a more class-based hierarchy than a race-based one. Already some liberals argue against racial affirmative action on the ground that it merely entrenches the advantages of family education and income, and that these are the privileges about which we should be most concerned. I have some sympathy for this view, but would prefer eventually to end all forms of affirmative action by increasing equality in health and education for children in the years before they become college students or workers, rather than simply substituting various measures like the percentage of an applicant's high school classmates who received free lunches to determine whether the applicant likely was underprivileged and therefore should be more actively recruited or admitted.

* I suspect that if there is any training given on how to fill out what otherwise seems like a fairly self-explanatory form, it includes an admonition to low-ball weight in the interests of minimizing police-civilian conflict.

** From my perspective, it's the "traditionalesque" aspect of American weddings that's truly new and strange. The stress and scale are less exceptional; Hindus have bankrupted themselves for a daughter's dowry and wedding. The number of decisions made for the contemporary, middle to upper class American wedding, however, seem to be something unique, like an elaborated Starbucks order writ large. Sure, a Hindu bride's father might have to sell a kidney to get her married off, but once the various payments to the groom's family -- both literal and in the form of free meals during the course of festivities for themselves and their friends -- are made, there aren't so many choices for the couple or even their family. The temple astrologer will tell them the auspicious day and time at which to marry, and a mix of religious and local traditions dictate how the bride will be dressed (red sari), what the priest will say (a lot of Sanskrit) and footwear for the wedding party (none).

May 25, 2007

Today / 05.25.07

Today in History (1787): Representatives of 12 colonies (Rhode Island refused to send any)
gathered at Pennsylvania State House to begin drafting the U.S. Constitution.
It was submitted for signing on September 17.

It's Really Too Orwellian to Obey

From David Schraub: "Noam Scheiber wants to turn 'Goodling' into a common noun (as in, 'The Bush administration cleaned house at FEMA and repopulated it with a bunch of goodlings.'). I kind of like it as a verb though, as in 'that department was running fine before it was goodlinged hardcore.'" The trouble with Schraub's desire to verb goodling, however, is that it sounds like a gerund already, which means the proper verb form actually would be "it was goodled hardcore," and then that clause just sounds inappropriate for a family blawg.

TNR commenter tlcastle says, "It's too perfectly Dickensian to resist," but I think the wrong writer is being invoked. "Goodling" is too simple and basic a descriptive name to associate with the man who gave us Thomas Gradgrind and Josiah Bounderby; Dickens liked names fulsome with connotation. Goodling sounds flattened and doublespoken, a name for a world of political binaries rather than one rich with social absurdity. It reminds me of nothing I've read so much as the passage early in the "Sword in the Stone" section of The Once and Future King, when the Wart lives among the ants, for whom all is either good or not-good. ("Sword in the Stone," incidentally, predates 1984 by a decade; I don't know whether Orwell's depiction of totalitarianism drew anything from White's.) Because I find totalitarian allusions depressing, I am not going to adopt Scheiber's use of Goodling as "meaning hyper-partisan hack."

Note, incidentally, that Scheiber's definition is explicitly political, whereas tlcastle's -- "the clueless, dimwitted, earnestly religious prude placed in positions of undeserved authority, busying themselves with trivia like naked statues instead of, you know, enforcing and obeying the law" -- is far more social and thus Dickensian (comic rather than ironic). Gonzales may be a Goodling for Scheiber, whereas Ashcroft is one for tlcastle. Given the recent revelations of Ashcroft's resistance to NSA surveillance by executive fiat, this strikes me as quite appropriate. Ashcroft may be the earnestly religious prude, but he's hardly a hyper-partisan hack, in contrast to Gonzales, whose value seems to have been primarily in his loyalty to Bush rather than any peculiar initiatives of his own devising.

May 24, 2007

Interstate Incest

I haven't read the ruling, but was interested by this description of a Suffolk County Superior Court's decision to deem New Yorkers who were not Massachusetts residents at the time of getting married in that state to be married nonetheless: "The ruling affects only a limited number of New York’s same-sex couples: those who married in Massachusetts between May 17, 2004, when that state authorized same-sex marriages, and July 6, 2006, when New York’s highest court rejected an effort to allow gay marriage." Such a limitation implies that plaintiffs who claim to have married in "good faith," thinking their marriages would be honored in New York, should indeed have those marriages honored, while those who married knowing that such marriages definitely were not recognized in their home state should not. It reminds me oddly of immunity for government officials in Section 1983 : if they're violating clearly established law, there is no immunity; if they have reason to think they are acting within the law, they get immunity from paying damages even if the court decides that they did violate someone's rights.

However, why New York should care what a Boston judge thinks is unclear. According to the NYTimes article, "The lawsuit challenged a decision by Mitt Romney, then the governor, that only those gay couples who lived or intended to live in Massachusetts, or those couples whose home state did not forbid same-sex marriage, could get married in Massachusetts." Sure, the marriages should be recognized if the spouses move to Massachusetts, but that certificate remains useless in New York. The article is slightly inaccurate about why this is so. "Last year, a judge ruled that only Rhode Island did not prohibit same-sex marriage, noting that New York’s highest court ruled on July 6 that it was not permitted." In Hernandez v. Robles, the Court of Appeals ruled that the state constitution did not require the legislature to recognize same-sex marriages, but that it was free either to permit or prohibit such, neither of which it has done. I suppose one could claim, as Judge Smith's majority opinion implied, that inasmuch as "New York's statutory law clearly limits marriage to opposite-sex couples" it actively prohibits it for same-sex couples, but I don't think the 1909 Domestic Relations laws can be read that broadly. Neither the text of the statute nor the intent of the writers -- unless someone wants to argue that the 1909 legislature foresaw same-sex marriage as a possibility -- prohibits same-sex marriages. As Smith himself notes, the law explicitly prohibited certain incestuous marriages and didn't even contemplate others like that between uncle and nephew.

Anyway, does anyone know what are various states' policies on recognizing marriages that would be incestuous or involve a minor in their own states? At least with the minor, presumably those marriages have to be recognized, or else it would have been useless for Matthew Koso and his then-14 year old bride to marry in Kansas and then come back to Nebraska. (Koso, incidentally, was released from prison earlier this month after serving a plea-bargained 15 months for statutory rape, and a duly embarrassed Kansas raised its minimum age to 15.) But what about the double first cousins, prohibited to marry under North Carolina law, who obtain a D.C. marriage license and bring it back to North Carolina? Nebraska prosecuted Koso for statutory rape that occurred before his marriage, but what if he'd married her in Kansas before having sex with her in Nebraska, and the cousins married in D.C. before having sex in North Carolina?

May 23, 2007

A Sad Moment

When I find myself
1) Reading Above the Law's analysis of the New York Times wedding announcement page; and
2) Agreeing with an anonymous Above the Law commenter, who says, "Cleary tax + Paul Weiss not = winning legal eagles? Meh..." Or if the double-Ivy and BigLaw combo doesn't do it for you (having married a law school classmate herself, perhaps Laurie Lin finds this an uninteresting way to meet), why not a Law Review EIC with a NYTimes.com news producer?

I trust that a Columbia Law shutout wouldn't happen on Lat's Legal Eagle Wedding watch. His dependable set of standards -- "(1) their résumés; (2) their families; (3) couple balance (how well-matched they are); and (4) beauty (but only if there's a picture of the happy couple)" -- has been abandoned for Lin's sighs over salsa and patronizing assumptions. ("Something tells us that preppiness was neither a goal nor a possibility for the Lisboa clan." Because only WASPs can be preppy? Lisboa's dad is a New Jersey judge; they're hardly FOBs.)

On the upside, Lin's links to the couples' wedding registries, presumably found through the wonder of Google, are a good reminder to put a robots.txt or other code on your wedding website to avoid having it picked up by search engines and inquisitive bloggers.

May 17, 2007

Pulled from the OMB's Rear End

Looking at Form 20-F (used by foreign private issuers to comply with SEC regulations), I noticed the little OMB approval box at the top. OMB approval is important; a notice at the bottom of the form's first page says, "Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number." What distubed me is that the "Estimated average burden hours per response" for this form is 2631.00.

Where did the OMB get that number? That's got to be a misplaced decimal point, otherwise the SEC estimates that it will take more time to respond to this request for information than the average BigLaw associate bills in a year. Yes, there are multiple registration statements and reports that go "on" the form, but it's still slightly mind-boggling to think that the easy version of compliance for a single company could occupy one lawyer for over a year. Then again, I suppose that's what in-house counsel's for.

May 11, 2007

We interrupt this blog....

... for a few final exams. Some of us even taking them for the last time. Congratulations to the rising JD's, and good luck to all of the law students out there.

Steve Vladeck, a regular at PrawfsBlawg and currently guest blogging on Concurring Opinions, asked a question a few weeks back about whether professors should insert current events into their exams. I got in on the discussion, arguing that profs should not only put current events into the exams, but should test ongoing developments in the area of the law being tested, whether they covered them in the course or not (within reason, of course).

I had an interesting parallel to that conversation in my Contracts exam yesterday. Our professor, who is amicus curiae on the technical issues in in re NSA Telecomms (the consolidated NSA domestic wiretapping cases), wrote a fact pattern that centered around someone writing a program that would use wiretapping information to detect terrorist patterns, and then selling it to US spy agencies.

Talk about current events! Our professor, who is very active in the case, putting the facts of a major case into an exam. Curiously, I was offered an internship with the ND Cal. District Court judge hearing the case, but unfortunately had to defer until I could get credit next spring.

But, of course, the exam questions had nothing to do with the issues in the real case, and any knowledge of the case wouldn't help a student whatsoever. All of the K's on the exam involved the employment contracts of the programmers, and the transactions between the software company and the buyers (NSA, FBI, CIA).

But interesting nonetheless.

I have two more exams to go, then I am off for the summer to work in Vietnam for a international law firm, focusing while I am there on international trade, WTO and IP issues. Stay tuned for more on that subject this summer.

May 08, 2007

Alternatives to "Say on Pay" as Federal Legislation

Thus far, the main argument I've seen against the "Say on Pay" legislation, proposed by Congressional Democrats and passed by the House, is that it overreaches the federal government's historical power to define the relationship among shareholders, directors and officers. This is state law territory traditionally, even though the interstate commerce clause and the decidedly national reach of almost any publicly-traded corporation would nix any claim of unconstitutionality in Congress's mandating that shareholders be able to make a non-binding yes-or-no vote on executive compensation. When I first thought about whether there was another way to get to the result of more shareholder input on executive compensation, I came up with a few ideas:

- Encourage Say on Pay to be legislated by states, maybe with a SD v. Dole-style prod of losing federal funding for anything related to corporate law, governance, etc. On the other hand, this might increase Delaware's incorporation advantage even more; I could imagine the state deciding that it makes more money on its board-friendly corporate law than it would lose by acceding to the federal demand.

- Push the New York Stock Exchange and NASDAQ to make it a requirement for corporations that list on them, with the usual unspoken threat that if the exchanges don't do it voluntarily, the heavy boot of government will be coming down. Such private action would reach a lot more companies than I would think either federal or state legislation would, because many companies listed on the major U.S. exchanges are incorporated outside the U.S. On the other hand, such an intrusive, extra-territorial requirement might raise howls from other nations' governments, as well as perhaps being enough to make listing on those particular exchanges less attractive. I assume the London Exchange doesn't require foreign corporations to follow British "say on pay" rules. Those rules, incidentally, were legislated after the UK best practice code's recommendations failed to convince the biggest British corporations to voluntarily add an advisory shareholder vote approving or disapproving specific compensation agreements after they become effective.

- I wondered whether the SEC had a rule for executive compensation that sort of parallels Rule 13(e)-3's requirement for taking a public corporation private, wherein key actors are required to justify the fairness of the transaction. This fits with the SEC's general mandate that it can't keep people from doing things the SEC may not like, but by God it can force them to generate a lot of paper if they do. Boards seem to explain their compensation decisions mostly in retrospect, when successfully sued by shareholders in derivative actions (reading Eisner et al trying to justify Ovitz's pay package in the Disney case is slightly painful). Then I remembered: the SEC does now, having adopted Compensation Discussion and Analysis last summer. The SEC is big on "narrative," and the CD&A seems likely to be more of the same:

New company disclosure in the form of a Compensation Discussion and Analysis will address the objectives and implementation of executive compensation programs - focusing on the most important factors underlying each company's compensation policies and decisions. The Compensation Discussion and Analysis will be filed and will thus be a part of the disclosure subject to certification by a company's principal executive officer and principal financial officer.

This sounds a bit vague and hand-wavey, and thus likely to fall short of what some have recommended that the CD&A do: "provide a justification for the compensation in light of the demands of the job, the particular industry, the actual performance, and other factors deemed relevant—in short, an explanation of why the compensation committee thinks the compensation is warranted. ... It would oblige specifically named individuals, the members of the compensation committee, to say publicly, 'This is what we are paying these executives, it is justified, and this is why.'" Presumably every corporation's CD&A will include words to the effect of "We want to recruit and retain the best executive talent in the market and reward high performance..." Which is all well and good, but doesn't tell us what the going rate for a good executive is, what the pay negotiations were like, who alternative candidate might be and what they would need to be compensated.

The only public corporation in which I've held stock directly (as opposed to mutual funds & such) issued statements and reports that had none of the above information. Then again, it also is the largest company entangled in a stock options backdating scandal -- having forced out its chairman and CEO over his questionable compensation (for those of you who think only the little guys go down) -- and so explaining the amount paid to executives, as opposed to the sketchy way in which it was paid, probably wasn't a a high priority.

All in all, I'm inclined to agree with Prof. Gordon's wait-and-see approach: "If a CD&A requirement and other process reforms seem ineffective after a five-year trial period, the shareholder advisory vote on a CD&A is an attractive next step." The only trouble with it is its lack of political realism: if the Democrats aren't in power in 2012, neither Congress nor the White House is likely to push for Say on Pay in any form, whether it be coercing the states or the exchanges, or having the SEC take action (Prof. Gordon remarks, "Such a measure could be adopted by ... the SEC as a condition for the circulation of a proxy statement," but it would go against the SEC's normal disinclination to force anything except paperwork on anyone). Therefore I consider it sensible for the Senate Democrats to hold the legislation in committee but continue to emphasize its existence and make clear that they are ready to act when necessary. This also has the political benefit of defining the Democrats as the party of oversight, without completely freaking out the business community.

May 07, 2007

PG Is Impersonated

Having said my last say on the AutoAdmit controversy, I was surprised to find myself getting pulled into a different fight between the named and anonymous: Philip Klein, whose web design on the Southeast Texas Political Review I critiqued in passing while commenting on a lawsuit against him, and "The Gutless Mr. Anonymous" at The Decline of Klein. The latter quoted my criticisms in his blog attacking Mr. Klein, and Mr. Klein replied. As I mentioned in the earlier De Novo post, SETPR's links are unstable, so I've copied his post after the jump. The part that worried me was this, in reference to my De Novo post:

DOK : As an example, I particularly liked your recent exchange on the relatively unknown legal blog, De Novo:

Response : I know - I had never heard about that site. He gives good advice. Oh... and he called me. Nice guy. Wanted to tell me what he thought of the lawsuit. Funny thing what others see out there looking into Jefferson County.

Unless I have been sleep-calling radio shows, I never have called Mr. Klein. I am a little distubed by the thought that someone could have seen my post and decided to call Mr. Klein, pretending to be me, so I'm hoping that his remark about having called him was a joke, or actually intended to reference someone other than me.

"The Decline of Kline"
By Philip R. Klein, Editor

And then there were six as it was once said.

What am I talking about? Well, over the last 13 years since I have been doing this site, there have been six sites dedicated to "spreading" the other side of the word. Meaning? Who knows?

So now we welcome #7. It is called the "Decline of Kline and this afternoon we have published the link to our front page. And the site gets it's due.

You may ask - why does he put a site up that is dedicated against him?

I do it for a few reasons.

First, it increases our readership. The more hits the better for us. It keeps interest in what we write and then others run over to the other site to see what the anti-klines (AK's) write.

Second, it is a good insight for you the reader to see the thought process of who and what runs Jefferson County Texas. It can and will get interesting. It is also funny to watch the writers do the same thing they accuse me of!

And last - it gives the AK's a place to go and be heard. Yes, they are gutless and they are too scared to sign their names. That is the reason for the blog - a place to go run and hide. So keep that in mind when you read the posts.

This morning I received an email from a good friend of mine that keeps up with this stuff in Houston for me. A download continues to come from two places - Lamar University and a local lawyers IP address. Thus - we kind of have an idea who is writing it and why. This morning my buddy wrote me an email and sent me a copy of the "open letter" to myself.

So - to kick off our newly found relationship - I will answer. So let's start the fun with Blog Site NUMBER 7 - "The Delcine" of Kline. His is in black my response is in regular type.

DOK : I heard the portion of your weekly radio show devoted to me and the Decline of Kline this past Saturday. Based on the number of local commercials that I heard during your two hours on the air, I'm guessing I'll probably pick up at least 5 or 6 new readers from that mention. Thanks!

Response : You are welcome. And welcome to our front page where you will be front and center for all to see!

DOK : While I certainly appreciate the mention, it's not necessary. Word is apparently spreading about this site. As an example, this blog was also mentioned on MegaDump last week. Who knows - maybe I'll even show up in Mr. Sluggo's Top 30.

Response : Great! We hope you make it to number one! It helps us. We love success! We wish you nothing but the best!

DOK : Calling your radio show "the area's only radio blog" is an oxymoron (key word read on). Since a blog is short for a web log, your radio show is really a radio show about a web log. This is typical of your basic misunderstanding of most issues, but in the greater scheme of things, this one is no big deal. More importantly, that claim is a blatant falsehood. Drudge has had a two-hour show on KLVI for the past 10 years or so. I bet Drudge's ratings are better than yours, too.

Response : I am not sure how that works. My station does all of the production and commercials as well as bumpers (intros and exits). But I will ask this next week at our production meeting. I was unaware that Drudge does a show. I know - I do misunderstand a bunch in the radio business - but I am learning. We have done about 75 or so shows and each one I try to improve. And as for Drudge - I have never heard his show, but my guess is that you are right - he is better. I would hope so anyway.

DOK : Attributing the reason that I'm not displayed on your front page to the anonymity of this blog is another lie. The Trog Blog (Beaumont Underground) is anonymous, yet you regularly comment on that blog in Tidbits and a link is included on your front page. I really don't care if this site is displayed on your front page or not, but at least have the integrity to admit the truth: your ego is too fragile to allow regular criticism of your confused opinions.

Response : First - yes you do care or you would not mention it. So be honest with yourself - you get your jollies out of it. It is okay. Many have come before you and will after.

Okay - lets test your theory. Okay? You are up and running - go get 'em big guy! Get up on your speakers podium and give your speeches cloaked with your bag on your head! You deserve your chance just like the other six before! But I kind of think it will get old also. You can only call me so many names, call me a liar (three times so far in your diatribe), or talk about my personal life so many times before people think it is just more of the same. Credibility is important - and helping yours might be a good thing if you sign your name. But it is easier for you to hide like a little school boy and throw your rocks. Yes, a couple will hit, but in the end when we face each other - you will lose (ask the other six). But you know that - that is why you hide now. Pride in your work? Never mind - it is your 1st amendment right? That seems to be selective here in Jefferson County. Welcome to the club - once you are in - you are in. And trust me - you are in.

DOK : I had to laugh when you claimed that you've only briefly looked at this site once or twice. I know you check here frequently - you are as subtle as a 9 pound hammer...that's funny, no matter who you are. According to my own anonymous sources, this blog has become one of your daily stops while combing the internet looking for any mention of your name.

Response : Well, I hate to burst your bubble, but I really did not hear about your site until last Monday and started to look at it. Three times in all. I just do not have the time. I wish I had more time. However, to be honest with you, it is kind of boring. The same old crap that the six other sites have put up over the past six year. In fact, I only read your posts and a couple of the readers writings - not much to it. I did like the Friday Fact check. Keying on the stuff you see as wrong is pretty good - but I noticed that the other 75% of the content was not mentioned? Advice - if you are going to do it - spend some time on it. I know you are busy - but if you are going to do it - do it. It helps our readership - and yours.

DOK : As an example, I particularly liked your recent exchange on the relatively unknown legal blog, De Novo:

Response : I know - I had never heard about that site. He gives good advice. Oh...and he called me. Nice guy. Wanted to tell me what he thought of the lawsuit. Funny thing what others see out there looking into Jefferson County.

DOK : Bear in mind that PG's take was based on a one-time visit to your site. He obviously doesn't realize that no permanent links exist because you don't want anyone keeping track of past statements for accountability. Nor does he realize that any confusion between news and opinion is purely intentional. That is, if you truly know the difference between news and opinion.

Response : Thanks....we never had in mind being a news type person. I am and editorialist that gives the story behind the story. A couple of folks in the mainstream tell me that we break stories that are shut down in their newsrooms for some reason. Something about lawyers and worry? Strange? But it is an honor for a mainstream Blog to write about us! Gone national!

DOK : I thought his fourth comment was the funniest, however. He apparently doesn't realize that those aren't mistakes in editing; rather, they're quite representative of your abilities, as evidenced by your frequent malapropisms such as "copy write" for "copyright" and "liable" for "libel."

Response : I know - I have been bad at spelling most of my life. I am getting a little better but it is an uphill battle. Oh...by the way...did you look at your posts? Ah yes - the fun has just begun!

DOK : If only PG knew you like we do - I'm sure he'd also have something to say about your ficticious sources, your personal agenda poorly disquised as political commentary, and your truculent attempts at bullying others.

Response : your ficticious sources / disquised as political - I am not real sure here but should that not read : your fictitious sources / disguised as political - ? Moving on - my personal agenda is to write a political web site and tell the stories that others cannot tell on a low tech bad spelling web site and draw out gutless whining, bad spelling, and most of all whining school boys play your games as we all laugh. Kind of like yours?

And by the way :

My name is Philip Klein - and this IS the Southeast Texas Political Review!

Quotent Pinots

PG contemplates below the prospect of writing an exam or a constitution while wined up. I won't say I've ever been so daring (read: even if I have/had I wouldn't admit it here), but I will say that I just returned from a day trip up to Napa (a lovely 50 miles from here, and I mean lovely). It is rather curious that our founding fathers specified their wines by origin (port, medeira, etc.) while PG simply notes that she has "red wine." Tsk tsk. This California snob thinks it is the perfect time to mention that there is a world of difference between reds. A world!!! Another thing, what's the deal with east coast restaurants not having a corkage policy?

Anyway, this is all a very long-winded way of introducing my quotes. The first is of course from the movie "Sideways." The second is from Ben Franklin's letter to Abbe Morellet (1779).

We hear of the conversion of water into wine at the marriage in Cana as of a miracle. But this conversion is, through the goodness of God, made every day before our eyes. Behold the rain which descends from heaven upon our vineyards; there it enters the roots of the vines, to be changed into wine; a constant proof that God loves us, and loves to see us happy. The miracle in question was only performed to hasten the operation, under circumstances of present necessity, which required it.

May 06, 2007

It Is a 24 Hour Take-Home

And I do have bottles of red wine and rum to finish... From the NYTBR:

Barbara Holland, though, might empathize. She reminds us that in 1787, two days before their work was done, the 55 delegates to the Constitutional Convention “adjourned to a tavern for some rest, and according to the bill they drank 54 bottles of Madeira, 60 bottles of claret, 8 of whiskey, 22 of port, 8 of hard cider and 7 bowls of punch so large that, it was said, ducks could swim around in them. Then they went back to work and finished founding the new Republic.” Note the 55 delegates and 54 bottles of Madeira. Which founder was slacking?

If Article Three could be written while one was not perfectly sober, surely my Fed Courts exam can be as well!

You Poor, Poor Man

Politicizing the Internal Revenue Code

I was all set to be annoyed about my Corporate Tax textbook and the Examples & Explanations both referring to the "redemption of stock to pay Death Taxes," until I stopped and looked at Section 303's title: "Distributions in redemption of stock to pay death taxes."

Oh. Don't blame the professors, blame the politicians. And right, first read the Code, McFly.

Notwithstanding the common conservative equating of "estate tax" with "death tax," there is much more covered by 303 than just the estate tax; "inheritance, legacy, and succession taxes," and "funeral and administrative expenses allowable as deductions to the estate" also get counted to up the limit of how much of the corporation's payment for the deceased's redeemed shares gets sale/ exchange treatment.

I'd have to spend a lot more time studying it than I have time remaining until tomorrow morning's exam before I could say for certain, but the provision strikes me as an odd one. Prof. Block says it was enacted in response "to the hardship faced by some family businesses forced to liquidate in order to pay estate and other death taxes," yet the bit I have been able to comprehend of Corporate Tax so far would indicate that redemption distributions (mostly covered by 302) are different from liquidations of a business. Yes, 302(b)(4) gives sale/exchange treatment for partial liquidations, but these seem to require that one trade or business (e.g., Kaplan's LSAT prep business) be liquidated while another (Kaplan's SAT prep business) continues to function, and thus this is distinct from a total liquidation in which the corporation satisfies creditors and then distributes remaining assets or cash to shareholders.

If Congress was worried about the family farm or Pop's Hardware getting liquidated in order to pay estate taxes, why not direct its mercy toward Section 311's treatment of individual shareholders upon complete liquidation? Assisting those who have had to dissolve a family business for tax reasons is much more sensible than assisting those whose inherited estate happens to be substantally made up of stock in a particular corporation. If Arthur Sulzberger, Jr. drops dead tomorrow,
and he didn't diversify his estate much so that 40% of it is made up of Times Co. stock,
and his heirs need to sell the stock to pay the estate taxes,
and the rest of the Family pushes to have the corporation redeem the stock so it won't get sold on the open market where it could get into the hands of non-Family shareholders who might force a change in how the company is run...
why should the Sulzberger heirs get this special treatment for their redeemed shares? I could see the argument if Section 303 were limited to shares that aren't listed on any exchange and for which there isn't much market (e.g. those in a close corporation, which is what family businesses that incorporate normally are), so the corporation really has to redeem the shares for the heirs to get any money out of them if the remaining shareholders can't or won't put up the cash. But there's no such limitation in Section 303, although the requirement that the estate hold 75%+ of each corporation when you try to combine two corporations to reach the "35% of the estate" standard at least comes a little closer; if 75% of a corporation's stock is held by a single person, it's likely to be a close corporation.

The recent shift to allow "qualified dividends" to be taxed at capital gain rates makes the distinction between sale/exchange treatment and dividend treatment less important (at least until 2011, when the provision sunsets), but I just get irked by Death Tax rhetoric about small businesses when the actual laws enacted due to such rhetoric have a much broader scope.

May 05, 2007

Tyco, Leather Pants and Milberg Weiss: A Request

Now I know how people feel about reading my long posts and comments. Would someone with more patience (and time, as I've three final exams still to go) than I possess be able to summarize what the "Bitter Queen" is alleging? The last two paragraphs give some idea, but not enough:

Among other deficiencies in Milberg Weiss's investigation -- in addition to those identified above -- are the following. For example, Ms. Tadler advised me that Keith Anderson, Esq. flatly denied all of my allegations. However, Milberg Weiss terminated him on July 22 in connection with an earlier and separate investigation, and that he subsequently would not admit culpable behavior to Milberg Weiss -- or anyone else, for that matter -- hardly is surprising. Indeed, in light of his July 22 termination, it is surprising that he subsequently met with Milberg Weiss at all as Ms. Tadler purports was the case. Moreover, although Ms. Tadler advised me that she spoke with the involved individuals, she offered no representation as to whether as part of the investigation she examined the emails by and to the involved individuals that were sent, received or read on Milberg Weiss computers. In addition to Milberg Weiss assigning firm email accounts to each of the temporary attorneys, I observed on several occasions many people accessing their personal email accounts on Milberg Weiss computers, and accordingly, such information is available to Milberg Weiss if, in ensuring the thoroughness of its investigation, it chooses to examine this material.

Finally, I suggest that Milberg Weiss itself may have encouraged an intentional white washing of the incidents against me, and was motivated by self-interest to engage in a superficial and cursory internal investigation of my allegations. After all, if the involved temporary attorneys were engaged in billing fraud in accordance with my suspicions, then Milberg Weiss would be hard pressed to bill their time to the court in a fee application upon settlement of the Tyco Securities Litigation. Milberg Weiss currently is the subject of a Justice Department investigation in three separate federal districts concerning the alleged use of paid plaintiffs and paid expert witnesses, and further is the subject of an SEC investigation.

May 04, 2007

Why We Don't Treat Terrorists Like Any Other Criminal

Steny Hoyer and David Schraub make a good point:

As Steny Hoyer pointed out in a breath-taking floor speech (scroll to Hoyer's second clip), in America today we also know of people--people of faith, even--who kill and slaughter because they hate the group their targets belong to. We call them terrorists. They attack us, by their own admission, not because they have met us and dislike us, and not because they are drunk. They attack us because we're Americans. Or Christian. Or Jewish. And despite the fact that murder remains illegal, we have anti-terrorism laws to deal with these people. As we should. The action of these men exists on a different moral plain from run-of-the-mill murderers. Murderers' victims are limited. Terrorists target the entire group towards whom they express their hate. When Nasrallah orders rocket attacks on Israeli civilians, I'm affected too, because his stated motivation is to kill Jews across the world. The slaughter is meant to send a message to me, as well, and I hear it loud and clear.

The people who kill to express hate, to strike fear across whole populations and groups, are terrorists. There can be no distinctions. And so, the Americans who would kill gay and lesbian Americans, like those who would bomb abortion clinics, like those who engaged in lynchings in the south, are terrorists. Their motive is hate. They believe that the people are behind them. Our job, our duty, is to prove them wrong in the most emphatic of terms. That's the message of this bill. And that's why it needs to be passed.

I'm a little doubtful of the "those who would bomb abortion clinics" part of that -- not because I support such bombings, but because I don't think of them as hate crimes. I don't think it should be legal to discriminate against someone because he's male, straight, white, Episcopalian, of English descent, able-bodied, or is 26, but I do think that if I should be able not to hire someone because he performs abortions. Personally, I'm actually more likely to do the exact opposite -- prefer a physician who spent one day a week at an abortion clinic, particularly if she were donating her services there -- but those who think differently ought to be able to act on those beliefs. And if a group is ineligible in my mind for protection against employment discrimination, then I don't see why it's a group whose attackers should receive heightened penalties. One could argue that some state jurisdictions are so opposed to abortion that bombers wouldn't get prosecuted or appropriately sentenced, but given that medical professionals are an educated, well-connected group in most communities, I doubt that the death of a nurse or doctor, even one who performed abortions, would be treated like that of Emmett Till. Neither "abortion clinic worker" nor "non-abortion clinic worker" seems to me a discrete and insular minority, nor a group with a history of discrimination (like women and the elderly, who do not fall into footnote 4 terms), and therefore categorizing abortion-clinic-worker-status with the classifications in the House bill seems weird to me.

Today / 05.04.07

Skepticism in the Face of Rape

Things I know after the sexual assault charges against the Duke lacrosse players have been dropped:

1) I am glad that I did not try to write about such a complicated case while it was going on.

2) Suspending students who have been charged with a violent felony is appropriate, though their tuition should be refunded if they don't get credit for the semester in which their suspension occurs.

3) Why I don't feel bad about castigating the accuser, and am frustrated by those who insist she has the true story: We need to maintain the still-tenuous default that someone who brings a complaint of sexual assault to law enforcement will be believed at least as much as someone who brings a complaint of non-sexual assault. The assumption people now are making about the Duke case, that this was a false complaint and no sexual assault occurred, really does hurt the maintenance of that default. The default is what gives many rape survivors the strength to go through a grueling criminal justice process; at least at the beginning, they could say to a cop, "He raped me," and be believed, even if ultimately they're brought to tears at cross-examination and they watch the rapist walk free after a not guilty verdict.

While I disapprove of the DA's handling of the case, I cannot disapprove of a norm in which survivors walk into police stations and are treated sympathetically rather than skeptically. Certainly the police and state's attorney should question the complainant carefully, as they would in any other case: build a timeline, get corroborating details, etc. But when one of my friends was mugged, even though the police never found the criminal and from the beginning were doubtful that they ever would, they didn't treat her like she either was lying about the mugging itself, or was incapable of accurately describing her assailant. They believed her about the mugging, and they respected her description of how it happened.

Had they arrested someone for the crime, he still would have been innocent until proven guilty, and I still would want him to have the full protections we afford defendants. Because maybe they picked up the wrong guy, and maybe when Jess identified him he really just looked an awful lot like a guy she's seen only briefly in poor light, so she should get grilled thoroughly about the accuracy of her identification both by law enforcement and by defense counsel when the case goes to trial. But she should be believed when she comes to the police about having been mugged, and other people should be believed when they come to the police about having been raped.

Particularly with the current backlash against Durham law enforcement, police departments now are going to feel like they should be more cautious, more skeptical, when faced with a complaint of sexual assault. If the woman who accused the Duke students did so with conscious falsity, she deserves condemnation despite her otherwise sympathetic background as a poor, single mother of three young children, with a history of mental illness.

4) Why I do feel bad about castigating the accuser: Early last week, when I was composing the post about AutoAdmit, a classmate on the computer next to mine read to me the story of a man who had just been set free after going on trial for the kidnapping and sexual assault of his girlfriend's two teenage daughters. She found it incredible that a jury could vote to acquit after a few hours of deliberation in such a case.

Authorities had charged that Hinson snatched the 17-year-old girls from their bedroom last year and dragged them one at a time to the underground room hidden beneath a tool shed, where he raped and bound them with duct tape. Prosecutors said Hinson expected the girls to die because the room had no air supply.
However, Hinson testified during the six-day trial that the girls had consensual sex with him.

I looked over at what she was reading and pointed out the following paragraphs:

Defense attorney Rick Hoefer spent much of his nearly two-hour closing argument Sunday picking apart what he called inconsistencies in the teens' testimony, including how long it took them to call 911 after their alleged escape and whether they saw Hinson with a gun.
Prosecutors said any discrepancies in their stories might have been a result of the trauma the teens went through.

She can't get her story straight, was the rallying cry of the Duke students' early supporters. The inconsistencies of the accuser were seized upon to show that she must be lying, not merely confused or traumatized.

Certainly Hinson's story is less plausible than the Duke players' outright denial that any sex occurred. Hinson's claim requires us to believe that two 17-year-old girls were so desperate for pot* that they consented to sex with a 48-year-old man in a 41/2 feet high room under a tool shed. The Duke players' claim requires us to believe only that a young sex worker, angry about racist, verbally abusive young men who hadn't paid her the money she needed, would decide to revenge herself by accusing them of sexual assault. But both cases may include the paradox of having a rape allegation being found insufficient because it was muddled by the symptoms of trauma -- confusion, memory problems, difficulty with clear thinking.

* Frankly the Hinson jury sounds kind of dumb. In response to one of the girls testifying that she bought drugs last summer from someone a defense witness said sold crack, the foreman said, "We all know people who smoke crack will do just about anything to smoke crack again." OK, but Hinson didn't have crack, he had pot. Pot =/= crack. I think the most amazing part of the jury deliberation is that they took a fact that they shouldn't have been allowed to know that normally would make the defendant look very bad, and turned it into a strike against the prosecution's witnesses:

Mention of anything connected with Hinson's previous rape conviction was barred from testimony to prevent the jury being swayed against Hinson. But jurors learned of it from an oversight in admitting a 911 logbook that says: "(One girl) STATES WAS RAPED BY MOTHER'S BOYFRIEND AT (address) HE IS FORMER SEXOFFEDER(sic) KENNETH HENSON(sic)." Rather than helping the prosecution, it raised doubts in the mind of jury foreman Thomas Williams, a former director of a 911 system, because he said rape victims don't usually mention the history of their attacker in their first call to police.

Dear Smoking Gun, Fire Don Imus's Contract

With all the chatter about Don Imus's suing CBS because his contract allegedly encouraged him to be offensive and required that he be given a warning before being penalized for telling an off-color joke, I really hope that the Smoking Gun gets a copy of said contract and posts it. It seems mildly insane that a media outlet would sign a contract giving an employee that much freedom -- I mean, if Imus got one warning per joke, he could just vary it slightly and never be in danger of losing his job for going too far -- but if they were really desperate to keep Imus during his last round of negotiations, I suppose it's possible.

Wayne Lo: At first I thought it was just a coincidence, but as more details came out, there were just too many eerie similarities to me. He was an immigrant, like myself. The events leading up to the shooting, the warning signs he gave out really reminded me of what happened at Simon’s Rock. They said he had mental-health issues. I don’t really think I had mental-health issues, but I did give out those warning signs. He harassed women, and I also had an incident where I was accused of stalking a female classmate. He went and purchased a gun at a store 40 minutes out of town; so did I. He wrote papers that got people’s attention; I did that, too.

Other things I noted: Wayne seems to be placing a lot of blame on the ease with which he was able to buy a gun. Regardless of the policy reasons behind banning guns, I got one thing to say: Wayne's gun didn't kill people, Wayne killed people.

He also seems to fancy himself as a bit of an iconic figure. He thinks that because of the path that he started, the rules should be changed:

Do you think that Cho’s writings should have been more of a red flag than they were?/strong>
It’s ludicrous that they didn’t stop this guy with all the warning signs. I mean, come on, I did this 15 years ago. I was one of the first school shooters. The question is, how don’t we learn from it? They’ve done studies; they know the typical warning signs now. How could they not see this coming?

What should be done when teachers or parents spot these warning signs?
Drastic measures should be taken. You should kick the kid out of school.

But did either of you really do anything that warranted kicking you out?
No. I certainly didn’t. But for him, in 2007, with all these precedents, there should be different standards.

I'm not terribly happy about posting this, giving Lo a larger audience, and carrying on what is a largely depressing thread for me, but that's the way it is. Maybe posting it will allow me to get the eerie words from Wayne out of my head and get back to outlining Contracts.

The Gays Were Already There

Andrew Sullivan notes and quotes the White House statement on President Bush's intent to veto H.R. 1592, but Sullivan has been misled by the Concerned Women for America's saying "Bush To Veto Gay Hate Crimes Law." He says, "The president will apparently prevent inclusion of gay victims of hate crimes within the federal statute."

No, no. In the Violent Crime Control and Law Enforcement Act of 1994, Congress already defined "hate crime" for the purpose of sentencing enhancement: "DEFINITION- In this section, 'hate crime' means a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person." The FBI collects statistics on the same bases: "Each year's edition of Hate Crime Statistics presents data regarding incidents, offenses, victims, and offenders in reported crimes that were motivated in whole or in part by a bias against the victim's perceived race, religion, ethnicity, sexual orientation, or disability." The last paragraph of the president's statement was the one that might have given the false impression that characteristics other than race, sex, national origin and religion were not previously covered:

Moreover, the bill’s proposed section 249(a)(1) of title 18 of the U.S. Code raises constitutional concerns. Federalization of criminal law concerning the violence prohibited by the bill would be constitutional only if done in the implementation of a power granted to the Federal government, such as the power to protect Federal personnel, to regulate interstate commerce, or to enforce equal protection of the laws. Section 249(a)(1) is not by its terms limited to the exercise of such a power, and it is not at all clear that sufficient factual or legal grounds exist to uphold this provision of H.R. 1592.

This sounds like an allusion to Section 5 of the 14th Amendment,which the Supreme Court in recent years has used as the limit on how far Congress can override state sovereignty under the 11th Amendment; that is, because Section 5 has been understood to empower Congress to legislate toward equal protection, Congress can pass laws that take away states' rights to discriminate on the basis of race or sex, but not on the basis of age or disability -- or, should it ever be federally legislated, sexual orientation. I don't know if this will help Sullivan find any more coherence in the position that the feds can prohibit hate crimes based on some characteristics yet not others.

May 01, 2007

Obama's Summer Lovin' / Law Firm

I missed this information when the Chicago Sun-Times published the article in January:

After Michelle's law school graduation, she joined the kind of "successful corporation'' -- Chicago's Sidley & Austin -- she wrote about at Princeton. Her specialty: marketing and intellectual property. If she had stayed longer, "she would have been a superstar,'' said Sidley senior counsel Newton Minow. "We were all crazy about her.''

Her first year, in walked Obama. Michelle was tapped as the young summer associate's advisor. "I remember that she was tall – almost my height in heels -- and lovely, with a friendly, professional manner,'' Obama recalls in Audacity of Hope. "Michelle was full of plans that day, on the fast track, with no time, she told me, for distractions -- especially men.''

Michelle tried to set Obama up with friends, but he wanted to take her out. Finally, she relented, and by the time Michelle called Williams to say she was dating someone new, Williams could tell this was something different, something special.

"She said, 'Guess what? I've got this great guy in my life. His name is Barack,'" Williams recalls. "It was clear she was pretty crazy about him. We had known each other when we dated other guys. You go through this whole 'he's not ready for commitment' [thing] . . . .But this guy was none of those things. [Barack] was a good, solid guy."

Four years later, in 1992, when the couple walked down the aisle of Trinity United Church of Christ. Michelle's childhood friend, Santita Jackson, daughter of the Rev. Jesse Jackson Sr., sang at the wedding.

Of course, these kind of matches still can (and do) happen, whereas the advent of Lexis and Westlaw has made love stories like that of the Alitos nearly anachronistic.

Martha Bomgardner, a young librarian in the U.S. attorney's office, overheard his quiet and upright-sounding answer: "I don't think that's something to talk about."

"Oh, this is a smart one," she thought.

She told friends she would marry him by the following April. But he was uncommonly shy, and despite multiple daily trips to the library, did not ask her out for 13 months. "He is judicious," she said recently with a laugh.

They had dated about a year when he got an offer from the U.S. solicitor general. The office is arguably the most respected law firm in the country, representing the U.S. government before the Supreme Court. Alito left for Washington in August 1981. "I thought that would be the end," Bomgardner said.

Four years later, Martha Bomgardner would become Martha Alito and Samuel Alito Jr. would be on a very different course.